The White House Confused PhotoStream

Wednesday, April 29th, 2009 by Harry Lewis

In a continuation of President Obama’s campaign for openness, a White House photostream has been created. The terrific photos were taken by the official White House photographer, but anyone can download them and use them. The photos are offered under a Creative Commons 2.0 Attribution license. All you have to do when you use the photo is to attribute it.¬†This is modern, open, and terrific.

Unfortunately, it’s wrong.

Neither the White House nor the official White House photographer can own these photos. The American people own them. They are federal property so they are your property. The government can’t own a copyright and a government worker can’t claim a copyright on work he did as part of his government job.

Doubtless attributing the photos is the right thing to do. But it can’t be a legal requirement.

It is also modern to assume everything is copyrighted, since that is virtually always the case. I’m sure the White House is trying to say these photos are in the public domain. But it’s awfully hard to say that. It’s pretty much impossible to give up your rights if you have them — the Creative Commons license was designed to do something very much like that. So the White House’s instinct is exactly right. It has simply forgotten that it, unlike any other creator of a creative work, can’t own copyrights in the first place.

No need to ask or to credit. You already paid for those photos.

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3 Responses to “The White House Confused PhotoStream”

Yep, it’s clearly wrong – but it’s not all the White House’s mistake. As the Creative Commons blog points out, “Flickr doesn‚Äôt allow their photographers to choose Public Domain as an option to release their work to the world. So the Obama team must have picked the next best option: Attribution only.”

Seems like Flickr needs to update their licensing options for a world where the Feds are posting. As for the White House…seems like a bit of a bind. Either post the photos under a slightly inappropriate license, or don’t post them on that particular (very popular) photo site at all. I prefer the former, given that decision. On the other hand, I kind of wonder if Flickr might add an option to their licensing list if the one doing the asking was the most powerful person in the world…

(i) Unlike CC licenses, you can’t take PD back – once it is done, it is done. I spec’d out a three stage confirmation (including typing out that you understand what it means) but this was seemed like too much and we didn’t want the support hassle. People are free to use the description field to specify their PD desires.

(ii) There are liabilities that we don’t want to take on if we allow people to claim something is public domain without actual checking the chain of title – if they don’t own it in the first place, we can get in trouble. (This is also true of CC images, but at least that can be changed after the fact and there is less of a chance of the image just “escaping” in the wild.)

All of which says to me that the solution is not for Obama to get a special case from Flickr, but for him to realize that copyright law is buggy, and to fix it.